Environmental Protection as an Obstacle to Free Movement of Goods: Realist Jurisprudence in Articles 28 and 30 of the e.c. Treaty

Abstract

Free trade and environmental protection are two norms that sometimes collide. The resolution of colliding norms can occur either using a formalist “descriptive” analysis, or using a “prescriptive” approach of legal realism. It may seem intuitive to imagine realism and formalism as mutually exclusive. However, this dualism is not entirely accurate. The realist-formalist dualism is unsatisfying because legal realism critiques the capricious nature of formalism only to replace it with likewise capricious methods of legal decision-making. Further, courts sometimes act as realists and at other times as formalists. Finally, many methods of legal interpretation may be considered either “formalist” or “realist.” This paper examines the conflict between free trade and environmental protection in E.C. law. It uses Articles 28 and 30 of the E.C. Treaty as a foil with which to draw out the distinctions and limits of both realism and formalism. A formal analysis of Articles 28 and 30 of the E.C. Treaty reveals a series of cases that struggle first to define waste as wares and then to determine the limitations that the free movement of goods imposes on environmental standards and vice versa. However, this unsatisfying formal analysis is not the only possible interpretation of the case law arising out of Articles 28 and 30. An analysis based on legal realism is also possible but not entirely satisfying. This paper concludes that the realist-formalist dualism, though tenable, does not solve the problem of capricious legal power.